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...Which court should rule on the Hearsay question?...
The plaintiffs were so concerned at the prospect of Justice Moynihan ruling on the admissibility of evidence that, on 13 February 1987, their senior counsel attempted to persuade Justice Deane that questions regarding the admissibility of this traditional evidence involved issues of law which should properly be considered by the High Court. Justice Deane was not, however, persuaded and the questions of admissibility remained with the Queensland Supreme Court.

The danger perceived by the plaintiffs was that the decision on admissibility was intertwined with rulings on the substance of the plaintiffs' claims. For example, when witnesses attempted to give evidence of what others had told them (about the existence of a particular boundary marker, for instance) Queensland had objected to the evidence on the basis that it was hearsay. A ruling that such evidence was inadmissible might leave little evidence of the Meriam people's traditional system of land tenure. The questions of law before the High Court regarding the capacity of the common law to recognise native title rights would then be unsupported by any evidence of such rights.

According to the plaintiffs, the existence of these native title rights involved questions of law before the High Court which should not be pre-empted in the Queensland Supreme Court's determination of the facts. As Ron Castan QC submitted:
'He [Justice Moynihan] is proposing to determine, as we would see it, the issues of evidence and that involves, in relation to this particular issue of evidence, determining, in effect, substantive rights.'

Justice Deane did not rule in favour of the plaintiffs, instead deciding that decisions on admissibility should remain with Justice Moynihan. Yet Justice Deane's comment to counsel representing Queensland indicated that the complete exclusion of evidence was a cause of concern and suggested that, in order to avoid pre-empting the determination of the legal issues by the High Court, one approach might be for Justice Moynihan to present alternative findings of fact based on alternative views as to admissibility:
'I do not want to ... by a back door interfere with what Mr Justice Moynihan is doing by expressing views, but I would say that I think it desirable that objections to evidence, if they involve complete exclusion of evidence by your client, in a situation where the matter is coming to this court, should, if possible, be aimed, as it were, at having alternative issues determined rather than excluding effectively the determination of the matter finally in this Court if one view of the law prevails over another ... I think it is incumbent on all parties ... to cooperate to formulate alternative issues which will enable His Honour to make the findings of fact which will enable the matter to be determined by this Court whatever view of the law might ultimately prevail.'

It appears that Justice Deane was, indirectly, cautioning against the complete exclusion of evidence and suggesting that the preferable course was to have alternative findings of fact. That is, if approach 'A' is taken to questions of admissibility then the following facts are found. If approach 'B' is taken, then a different set of facts are found. Such an approach would ensure that there was a factual foundation on which the High Court could base its consideration of the questions of law regarding the existence of native title.

As it turned out, Justice Moynihan did not present his findings of fact in the alternative. Much of the disputed evidence was admitted. Evidence that a person had told the witness that a certain piece of land belonged to X was admitted because the making of the comment was itself relevant to the existence of a traditional system of land tenure, even if not admissible to prove the truth of the statement. For example:
'The plaintiff Eddie Mabo gave evidence of being in a boat with his grandfather, who was deceased at the time of the trial, and his grandfather pointing out what was described as a windbreak and saying that the post at the end of the windbreak indicated a boundary line and then going on to say that another post which he indicated was another boundary line.
I am for the moment at least prepared to accept that evidence of activities of this kind and words which accompanied them may be admissible to prove a system of defining boundaries to land and of pointing out those boundaries to others, particularly those who might ultimately be interested in the land. I am not necessarily so easily persuaded that evidence of this kind is thus rendered admissible to prove the truth of the statements so as to sustain a claim by Eddie Mabo to land defined by the boundaries so pointed out.'
Keywords: Castan, Ron, Deane, Sir William, evidence, hearsay, High Court of Australia, Mabo, Edward Koiki, Mabo v Queensland No.2, Moynihan, Justice Martin, oral evidence, oral tradition, plaintiffs, Queensland, Supreme Court of Queensland, 1987

Source: Mabo v Queensland, Determination of Facts at p 38.
Author: Kenna, Jonathan